In the Interest of J.A.O., et al., Children--Appeal from 131st Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-03-00569-CV
IN THE INTEREST OF J.A.O., et al.
From the 131st Judicial District Court, Bexar County, Texas
Trial Court No. 2002-PA-01349
Honorable Juan Gallardo, Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: October 1, 2003

AFFIRMED

After the trial court terminated the appellant's parental rights, the appellant filed a motion for new trial and statement of appellate points. Appellant appeals the trial court's finding that his appellate points are frivolous. This court ordered that the appeal be submitted on the record without briefing. Tex. Fam. Code Ann. 263.405(g) (Vernon 2002). We affirm the trial court's order.

In his statement of appellate points, appellant presented three issues for appeal: (1) the denial of his motion for continuance; (2) the denial of his motion to strike; and (3) the legal and factual sufficiency of the evidence to support the termination of appellant's parental rights. In determining whether an appeal is frivolous, a trial judge may consider whether the appellant has presented a substantial question for appellate review. In re A.M.R., No. 04-03-00335-CV, 2003 WL 21467518 (Tex. App.--San Antonio June 25, 2003, no pet.) (not designated for publication). An appeal is frivolous if it lacks an arguable basis in law or in fact. Id. We review a trial court's determination that an appeal is frivolous under an abuse of discretion standard. Id.

A trial court's denial of a motion for continuance is reviewed under an abuse of discretion standard.Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 685 (Tex. 2002). In this case, the petition was originally filed in July of 2002. In February of 2003, the appellant's rights were initially terminated, but a new trial was granted after appellant filed a motion for new trial and statement of appellate points, asserting, among other grounds, that the trial court denied appellant's motion for continuance. On March 6, 2003, the permanency review hearing was set for May 8, 2003. Appellant filed a motion for continuance on May 2, 2003, noting that he was incarcerated in the Bexar County Jail and had been unable to make bond. The trial court did not abuse its discretion in finding that an appellate issue regarding the denial of the motion for continuance would be frivolous.

When reviewing complaints about a trial judge's questioning of a witness, we also apply an abuse of discretion standard of review. Cason v. Taylor, 51 S.W.3d 397, 405 (Tex. App.--Waco 2001, no pet.). In order to preserve a complaint regarding questioning by a trial judge for appellate review, the appellant must make a timely objection, and an objection is generally not timely if it is made after the evidence has been admitted. See id. Appellant complains that the trial court erred in denying his motion to strike testimony elicited by the trial court during its questioning; however, it does not appear from the discussion at the hearing that appellant objected during the trial to the trial court's questioning. Furthermore, a judge may put competent and material questions to a witness either on the examination in chief or on cross-examination, and, where anything material has been omitted, it is sometimes his duty to examine a witness. See id. The trial court did not abuse its discretion in determining that an appellate issue regarding the denial of the motion to strike would be frivolous.

Finally, appellant sought to raise appellate issues regarding the sufficiency of the evidence to support the trial court's decision to terminate his parental rights. The trial court took judicial notice of its files, which included permanency plans and progress reports. The progress report reflects that in April of 2000, the appellant was living with the mother of his son. The report states that all of the adults in the home used marijuana, and no adults were present to care for the children. The report states that the adults reportedly spent all their money on drugs and beer and did not provide food for the children. The report further states that appellant participated in a urine analysis on June 30, 2002, and he tested positive for cocaine and marijuana. Appellant attended one parent visit in August of 2002, but he failed to attend any further parent-child visits. Appellant did not attend paternity testing scheduled for October 4, 2002. On January 6, 2003, appellant contacted the case worker stating he wanted to visit the children and participate in services. An appointment was scheduled for January 9, 2003, to discuss the case. In February of 2003, the appellant was incarcerated in the Bexar County Jail for possession of a controlled substance. After participating in a psychological exam while in jail, appellant did not participate in any other services.

At the hearing of the proposed appellate points, the trial judge asked questions in his efforts to recall the evidence presented during the two-day trial. The attorneys confirmed that appellant had moved to Houston for a period of time before being placed in custody but was not in custody for the entire time that the case was pending. The attorney further confirmed that an aunt testified that when appellant was living with her with the children, appellant went out and "did his own thing." The trial court did not abuse its discretion in determining that an appellate issue regarding the sufficiency of the evidence to support the termination would be frivolous.

The trial court's order is affirmed.

Alma L. L pez, Chief Justice